Feb 8 Neil Gorsuch - The Jurist

With all the controversy around Donald Trump, his cabinet picks, and the Democrats’ next moves, there has been a vacuum of scrutiny on one of Trump’s most influential appointments – that of Neil Gorsuch to the Supreme Court. Sources covering Gorsuch’s appointment tend to focus on the political ramifications and pay only lip service to his stances and case law. Most state that he is a stalwart supporter of religious liberty and that his writing style echoes that of his predecessor, Antonin Scalia. Yet, his jurisprudence regarding the death penalty, privacy law, administrative law, the Commerce Clause, and criminal law have been overlooked despite their critical importance to understanding a man nominated to the nation’s highest court.

While sitting on the 10th Circuit Court of Appeals, Gorsuch wrote opinions on many cases that reflect his judicial philosophy. He is an ardent textualist, meaning that he believes the Constitution must be interpreted as it was written and as the founding fathers intended it to be read. He has a similar traditional opinion on legislative statutes, as well. He views the written words of legislatures strictly, in order to prevent judicial overreach. Though these are the guiding principles to understanding Gorsuch’s stance on issues, he has a distinct view on each of the biggest judicial cases of the recent decades.

Death Penalty

Gorsuch appears to be a staunch supporter of the death penalty. His jurisprudence generally gives broad deference to previous court decisions concerning the death penalty and has often ruled that errors in previous hearings do not entitle the defendant to relief from the death penalty. Gorsuch has also been reticent to grant death row inmates federal habeas corpus, often deferring to Congress’s guidelines that federal habeas corpus protections in death penalty cases only exist for one year after sentencing (see Glossip v. Trammell, Flores v. Wilson, and Lambert v. Workman).

Criminal Law

Much like Justice Scalia, Gorsuch reads criminal statutes on a textual basis, often disadvantaging the prosecution in the process. He does not appear to have any particular deference for the prosecution or defense; rather, he rules in whichever manner is most consistent with the text of the law and the Supreme Court jurisprudence. His ruling in the United States v. Games-Perez was founded upon a strict textual interpretation of the concerned statute; he ruled that a felon could not be convicted of firearm possession without the prosecution proving that the defendant knew he was a felon.

Abortion

While there are no cases in Gorsuch’s docket that point definitively to a stance on abortion, his position can be reasonably surmised based on personal writings and case law. In Gorsuch’s book, The Future of Assisted Suicide and Euthanasia, he asserts that “existing law [banning assisted suicide and euthanasia] on the basis that human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” He also showed sympathy to the claim that a nonviable fetus could be covered under a wrongful death statute. These two views, taken together, imply that abortion is not a right but a fundamental wrong.

Religion

Gorsuch takes an expansive view on the freedom of religion and is sympathetic to the public displays of religion. In one of his most high profile judicial votes, Hobby Lobby Stores, Inc. v. Sebelius, Gorsuch held that the Free Exercise clause of the First Amendment protected the owners of Hobby Lobby from the ACA requirement to provide contraception for their employees. The Supreme Court subsequently affirmed his decision. Gorsuch does not support the “reasonable observer” test for determining violations of the Establishment Clause of the First Amendment. Instead, he supports a laissez-faire approach to Establishment Clause violations, often writing in favor of governmental discretion (see Green v. Haskell Cty. Bd. of Comm’rs, Am. Atheists, Inc. v. Davenport, and Summum v. Pleasant Grove City).

Administrative Law

While the media generally overlooks this area of law, it is of vital importance to the structure and powers of the three branches of government. In one of the most high profile deviations from Scalia’s legal philosophy, Gorsuch opposes the Chevron doctrine, which gives the executive branch broad authority to interpret the contours of unclear legislative mandates. According to SCOTUSblog, an independent blog run by top legal scholars, “Gorsuch definitely has a different take from Scalia on the administrative state — one that grants it less power, and so accords even more closely with the conservative conception of small government.”

Neil Gorsuch is a staunchly conservative judge and a rigid textualist; his selection by Trump is sure to please the conservative base of the GOP. In a time roiling with political strategy and seemingly absent of any statesmanship, one can only hope that Gorsuch will get the scrutiny he deserves, if only because the country needs it.

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